IN THE SUPREME COURT OF VIRGINIA AT RICHMOND IN THE MATTER OF SUPREME COURT RULES PART 6, II, RULES OF PROFESSIONAL CONDUCT 5.5 AND 8.

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1 VIRGINIA: IN THE SUPREME COURT OF VIRGINIA AT RICHMOND IN THE MATTER OF SUPREME COURT RULES PART 6, II, RULES OF PROFESSIONAL CONDUCT 5.5 AND 8.3 PETITION OF THE VIRGINIA STATE BAR Edward L. Weiner, President Karen A. Gould, Executive Director James M. McCauley, Ethics Counsel Virginia State Bar 1111 East Main Street Suite 700 Richmond, VA Phone (804) Fax (804)

2 TABLE OF CONTENTS I. Overview of the Issues 1 A. Rule B. Rule II. Publication and Comments 9 A. Rule B. Rule III. Proposed Rule Change 10 IV. CONCLUSION 11 ii

3 VIRGINIA: IN THE SUPREME COURT OF VIRGINIA AT RICHMOND IN THE MATTER OF SUPREME COURT RULES, PART 6, II, RULES OF PROFESSIONAL CONDUCT 5.5 AND 8.3 PETITION TO THE HONORABLE CHIEF JUSTICE AND THE JUSTICES OF THE SUPREME COURT OF VIRGINIA: NOW COMES the Virginia State Bar, by its president and executive director, pursuant to Part 6, IV, Paragraph 10-4 of the Rules of this Court, and requests review and approval of amendments to Rules of Professional Conduct 5.5 and 8.3, Part 6, II, Rules of Virginia Supreme Court, as set forth below. The proposed amendments were unanimously approved by the Council of the Virginia State Bar on June 18, 2015 (Record, Page 29). I. Overview of the Issues A. Rule 5.5 The Virginia State Bar Standing Committee on Legal 1

4 Ethics ( Committee ) has proposed an amendment to Comment [1a] to Rule of Professional Conduct 5.5. Comment [1a] to Rule 5.5 currently states, For purposes of paragraphs (a), (b), and (c) "Lawyer," denotes a person authorized by the Supreme Court of Virginia or its Rules to practice law in the Commonwealth of Virginia including persons admitted to practice in this state pro hac vice. The Committee believes that the inclusion of (c) was inadvertent and that reference to paragraph (c) in Comment [1a] should be removed. Paragraph (c) to Rule 5.5 states, A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. The Virginia State Bar s Multijurisdictional Task Force ( MJP Task Force ) made substantial amendments to Rule 5.5, and other rules and regulations, to enable the VSB to regulate the practice of law in Virginia by foreign lawyers. The Task Force rewrote Rule 5.5 and 2

5 added a new paragraph (d) to define the scope of permissible practice for foreign lawyers. These amendments were adopted by this Court effective March 1, For purposes of paragraph (d), a foreign lawyer was defined as a person authorized to practice law by the duly constituted and authorized governmental body of any State or Territory of the United States or the District of Columbia, or a foreign nation, but is neither licensed by the Supreme Court of Virginia or authorized under its rules to practice law generally in the Commonwealth of Virginia, nor disbarred or suspended from practice in any jurisdiction. Rule 5.5 (c), however, was intended to apply to any lawyer and especially to foreign lawyers. Virginia Rule 5.5(c) is identical to ABA MR 5.5(a) which was adopted to regulate and prohibit unauthorized practice by a lawyer in a jurisdiction in which the lawyer is not licensed or otherwise authorized to practice law. See Comment [1] to ABA Model Rule 5.5. See also Comment [1] to Va. Rule 5.5, which states: 3

6 A lawyer may practice law only in a jurisdiction in which the lawyer is authorized to practice. A lawyer may be admitted to practice law in a jurisdiction on a regular basis or may be authorized by court rule or order or by law to practice for a limited purpose or on a restricted basis. Paragraph (c) applies to unauthorized practice of law by a lawyer, whether through the lawyer s direct action or by the lawyer assisting another person. However, Comment [1a] limits the application of Rule 5.5 (c) to lawyers authorized to practice in Virginia, so that paragraph (c) of Rule 5.5 cannot be used to charge a foreign lawyer for having engaged in the unauthorized practice of law (UPL)in Virginia. Thus, in this respect, limiting the application of Rule 5.5(c) only to lawyers admitted to practice in Virginia is inconsistent with the other amendments to Rule 5.5 proposed by the MJP Task Force and adopted by the Court. Indeed, one of the primary goals of the MJP Task Force s recommendations was to adopt rules regulating the conduct of foreign lawyers rendering legal services in Virginia. For example, the MJP Task Force proposed, and this 4

7 Court adopted, amendments to Rule 8.5(a) of the Virginia Rules of Professional Conduct and the UPL Rules to enable the VSB to regulate UPL by foreign lawyers as an attorney discipline matter, and not as a matter for investigation by the UPL Committee, which now only investigates UPL by non-lawyers. See Part 6, I, (C) of the Rules of the Supreme Court of Virginia ( Definition of a Non-Lawyer): Definition of Non-lawyer. The term non-lawyer means any person, firm, association or corporation not duly licensed or authorized to practice law in the Commonwealth of Virginia. However, any lawyer not licensed to practice law in Virginia, but licensed in any other state or territory of the United States or the District of Columbia, or a foreign nation, who provides legal advice or services to clients in Virginia, shall not be subject to these Unauthorized Practice rules but shall be subject to the laws, rules and regulations of the jurisdiction(s) in which he/she is licensed to practice, as well as otherwise applicable Virginia Law including the Virginia Rules of Professional Conduct. (Emphasis added). The definition of a nonlawyer in Paragraph (C) was rewritten and adopted by the Court in 2010, shifting responsibility for the enforcement of UPL by foreign lawyers from the UPL Committee to the disciplinary 5

8 system of the Bar. Prior to these amendments, foreign lawyers who engaged in UPL were investigated by the UPL Committee. To facilitate the change in enforcement responsibility, Rule 8.5(a) was amended to provide in pertinent part: A lawyer not admitted in Virginia is also subject to the disciplinary authority of Virginia if the lawyer provides, holds himself out as providing, or offers to provide legal services in Virginia. By doing so, such lawyer consents to the appointment of the Clerk of the Supreme Court of Virginia as his or her agent for purposes of notices of any disciplinary action by the Virginia State Bar. A lawyer may be subject for the same conduct to the disciplinary authority of Virginia and any other jurisdiction where the lawyer is admitted. With the UPL Committee divested of authority to investigate foreign lawyers for engaging in UPL, and Part 6, 1, Paragraph (C) s direction that such matters fall within the purview of the Rules of Professional Conduct, Rule 5.5(c) of the Rules of Professional Conduct is the appropriate rule to apply to a foreign lawyer who has engaged in UPL in Virginia, has maintained a systematic and continuous presence in 6

9 Virginia without proper authority or licensure, or has exceeded the scope of the limited temporary practice rules set out in Rule 5.5(d)(4). But Comment [1a] as currently written does not permit the Virginia State Bar to enforce Rule 5.5(c) against a foreign lawyer that has engaged in UPL. Therefore, the Committee proposes that Comment [1a] should be amended to strike the reference to paragraph (c) of Rule 5.5. The proposed changes are included below in Section III, with additions underlined. B. Rule 8.3 The Ethics Committee believes that current Rule 8.3(e) fails to provide a procedure by which a lawyer s compliance with the obligation to selfreport can be verified. The self-reporting duty under Rule 8.3(e) does not clearly state how and to whom the respondent attorney is to report the discipline imposed by a 7

10 court or state bar in another jurisdiction. Rule 8.3(a) uses the language appropriate professional authority in connection with a lawyer s obligation to report misconduct of another lawyer. However, one could conclude that this language simply means the Virginia State Bar and that the respondent may properly discharge his self-reporting obligation merely by calling any employee at the Virginia State Bar, including personnel who are not involved with professional regulation. Furthermore, as with any other alleged violation of the Rules of Professional Conduct, the Bar would have to prove a violation of this Rule by clear and convincing evidence. As currently written, Rule 8.3(e) does not set out any procedure by which the Bar can determine whether a Virginia attorney has complied with the duty to self-report required by the rule, making the rule quite difficult to enforce. Accordingly, the Committee recommends an amendment to the Rule to require that a self-report be made in writing to the 8

11 Clerk of the Disciplinary System. The proposed changes to the Rule are set out in Section III, below, with additions underlined. II. Publication and Comments A. Rule 5.5 The Standing Committee on Legal Ethics approved the proposed amendments to Rule 5.5 at its meeting on March 19, 2015 (Record, Page 10). The Virginia State Bar issued a press release dated March 26, 2015, pursuant to Part 6, IV, Paragraph 10-2(c) of the Rules of this Court (Record, Page 11). Notice of the proposed amendments was also published on the Bar s website on the Proposed Rule Changes page (Record, Page 17) and in the Bar s E-News on April 1, 2015 (Record, Page 24). Three comments in support of the proposed amendments were received from August Bequai, Thomas Edmonds, and Michelle Gowdy (Local Government Attorneys of Virginia) Record, Page 26). B. Rule 8.3 9

12 The Standing Committee on Legal Ethics approved the proposed amendments to Rule 8.3 at its meeting on March 19, 2015 (Record, Page 10). The Virginia State Bar issued a press release dated March 26, 2015, pursuant to Part 6, IV, Paragraph 10-2(c) of the Rules of this Court (Record, Page 11). Notice of the proposed amendments was also published on the Bar s website on the Proposed Rule Changes page (Record, Page 17) and in the Bar s E-News on April 1, 2015 (Record, Page 24). One comment in support of the amendment was received from Michelle Gowdy (Local Government Attorneys of Virginia) (Record, Page 27). III. Proposed Rule Change 1 Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law (c) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. **** Comment [1a] For purposes of paragraphs (a), and (b), and (c) Lawyer, denotes a person authorized by the Supreme 1 Proposed deletions are indicated by stippling, and additions are denoted by underlining. 10

13 Court of Virginia or its Rules to practice law in the Commonwealth of Virginia including persons admitted to practice in this state pro hac vice. Rule 8.3 Reporting Misconduct (e) A lawyer shall inform the Virginia State Bar if: (1) the lawyer has been disciplined by a state or federal disciplinary authority, agency or court in any state, U.S. territory, or the District of Columbia, for a violation of rules of professional conduct in that jurisdiction; (2) the lawyer has been convicted of a felony in a state, U.S. territory, District of Columbia, or federal court; (3) the lawyer has been convicted of either a crime involving theft, fraud, extortion, bribery or perjury, or an attempt, solicitation or conspiracy to commit any of the foregoing offenses, in a state, U.S. territory, District of Columbia, or federal court. The reporting required by paragraph (e) of this Rule shall be made in writing to the Clerk of the Disciplinary System of the Virginia State Bar not later than 60 days following entry of any final order or judgment of conviction or discipline. IV. CONCLUSION The Supreme Court is authorized to regulate the practice of law in the Commonwealth of Virginia and to prescribe a code of ethics governing the professional conduct of attorneys. Va. Code , Pursuant to this statutory authority, the Court has 11

14 promulgated rules and regulations relating to the organization and government of the Virginia State Bar. Va. S. Ct. R., Pt. 6, IV. Paragraph 10 of these rules sets forth the process by which legal ethics advisory opinions and rules of professional conduct are promulgated and implemented. The amendments to Rules 5.5 and 8.3 were developed and approved in compliance with all requirements of Paragraph 10. THEREFORE, the Bar requests that the Court approve the proposed amendments to Rules of Professional Conduct 5.5 and 8.3, Part 6, II of the Rules of the Supreme Court of Virginia for the reasons stated above. Respectfully submitted, VIRGINIA STATE BAR By Edward L. Weiner, President By Karen A. Gould, Executive Director Dated this 29th day of June,